What is contributory negligence, and how does it reduce a claim?

People who were partly responsible for their own injury often do not claim at all, because they assume that being at fault ends the matter. It is one of the most costly misunderstandings in South African personal injury law, and it is a hangover from a rule that was abolished seventy years ago.

The rule that used to apply

Before 1956, contributory negligence was a complete defence. If the person claiming had contributed to their own harm at all, even slightly, they recovered nothing. The defendant might have been ninety per cent to blame, and it made no difference.

The Apportionment of Damages Act 34 of 1956 replaced that all-or-nothing rule with a proportional one. Where a claimant suffers damage partly through their own fault and partly through the fault of another, the claim is not defeated. The damages recoverable are reduced to the extent the court thinks just and equitable having regard to the claimant's share of responsibility.

In practice that means the court fixes a percentage.

How the arithmetic works

The court works out the full value of the claim first, and then applies the apportionment.

If a claim is worth R800 000 and the claimant is found 30% responsible, the claimant recovers R560 000. If the apportionment is 50/50, they recover R400 000. If they are found 80% responsible, they recover R160 000.

This matters for how a case is run. The value of the claim and the apportionment are separate fights, and a claimant can win handsomely on one and lose badly on the other. A medico-legal team may establish a very large loss of earnings and still see most of it disappear on an apportionment argument that nobody prepared for.

It applies to RAF claims

This is the part most often got wrong, including in published advice.

A Road Accident Fund claim is not immune from apportionment. If you contributed to the collision, your RAF award is reduced by your share of the fault in exactly the same way. The Fund routinely raises apportionment, and it is one of the most common reasons a claimant receives materially less than the figure they were led to expect.

Our RAF claim range indicator gives the shape of a claim before apportionment, and our guide on claiming from the RAF when the accident was partly your fault deals with that specific situation. The short answer is that you can claim, and you should, but expect the Fund to argue about the split.

The situations that produce an apportionment

Some are obvious. Others catch people entirely by surprise.

Driving. Speeding, following too closely, failing to keep a proper lookout, entering an intersection against a light, overtaking where you should not have. Collisions are frequently the fault of both drivers to some degree, and 50/50 findings are common where neither version is clearly preferable.

Not wearing a seatbelt. This is the classic. The seatbelt did not cause the collision, so it has nothing to do with who is to blame for the crash. But it contributed to the severity of the injuries, and South African courts reduce damages accordingly. A claimant who was entirely blameless for the collision can still face an apportionment for the injuries a belt would have prevented.

Being a passenger who accepted the risk. Getting into a car with a driver you knew was drunk, or who you knew had no licence, or riding in the back of a bakkie. The collision may be entirely the driver's fault; the decision to be in that vehicle is yours.

Motorcyclists and helmets, on the same reasoning as seatbelts.

Pedestrians. Crossing a freeway, stepping into traffic, crossing while intoxicated. Pedestrians are a large share of RAF claimants and apportionment findings against them are common, often substantial.

Ignoring a visible danger. Walking through an area that was obviously cordoned off, or using equipment in a way the warnings prohibited.

What the court is actually comparing

The comparison is not simply who caused more of the accident. The Act directs attention to the claimant's share of responsibility for the damage, which is why the seatbelt cases work the way they do.

It follows that an apportionment argument can be about two different things, and they should be handled separately:

• Causing the incident. Whose driving, or whose conduct, brought the collision about.
• Causing the extent of the harm. Whether the claimant did something that made the injuries worse than they would otherwise have been.

A claimant may be entirely innocent of the first and still carry a percentage on the second.

Proving and resisting an apportionment

Because the percentage is decided on evidence rather than by formula, the material that decides it is gathered in the first days.

The accident report and the sketch plan. The police docket, the officer's observations, the positions of the vehicles.

Photographs of the scene. Skid marks, debris, damage patterns and the final resting positions all speak to speed and to who was where.

Witness statements taken early. Memories about who had the light or who was on the wrong side of the road degrade very quickly, and independent witnesses are rarely findable months later.

Medical records that address mechanism. Where a seatbelt apportionment is raised, the medical evidence about how the injuries were caused becomes central. Injuries consistent with belt use defeat the argument.

Reconstruction evidence in serious matters, where an expert can address speed and avoidability.

An apportionment is a finding, not a formality, and a defendant who raises it has to make it good. A claimant with photographs and two independent witnesses is in a far better position than one relying on their own recollection.

Children are treated differently

A young child cannot be contributorily negligent, and this matters a great deal because children are so often injured as pedestrians.

South African law works from the position that a child under the age of seven lacks the capacity to be negligent at all. Between seven and fourteen there is a presumption against capacity, which can be rebutted by showing that the particular child had the maturity to appreciate the danger and to act accordingly. Above fourteen a child is assessed much as an adult would be, allowing for age.

The practical consequence is that a defendant who argues that a six-year-old ran into the road is not raising contributory negligence at all, because the child could not have been negligent. The argument has to be about whether the driver was negligent, which is a different question.

Where an older child is involved, expect the argument, and expect it to turn on evidence about that child specifically: their age, their understanding of traffic, whether they had been taught to cross, and what they actually did.

How apportionment shapes a settlement

Most claims settle, and apportionment is usually the thing being negotiated rather than the value.

An insurer or the Fund will often accept the medical evidence and the actuarial calculation while offering a settlement on a stated apportionment, because that is the cheapest concession to extract. A claimant under pressure, who has been waiting years, is being asked to accept a percentage rather than to argue about it.

Two things are worth knowing before that conversation. First, the percentage is negotiable and is frequently negotiated: an offer at 50% is not a finding at 50%. Second, the strength of your position on apportionment is fixed long before the negotiation, by whether the scene was photographed and whether witnesses were traced. By the time an offer arrives, that evidence either exists or it does not.

The other half of the Act

The Apportionment of Damages Act also governs the position between joint wrongdoers, meaning two or more people who are each responsible for the same damage.

A claimant may sue any one of them for the whole loss, and the one who pays may then recover a contribution from the others according to their respective shares of fault. This matters where one wrongdoer is uninsured or insolvent: the claimant is not left with a fraction of the claim simply because one of the responsible parties cannot pay.

There are procedural requirements attached to joining and giving notice to joint wrongdoers, and getting them wrong can cost the right of contribution, which is one of several reasons multi-party claims are not a do-it-yourself exercise.

Worked example

This example is illustrative. Sarah is a passenger in a car that is struck by a driver who runs a red light. The other driver is plainly at fault for the collision. Sarah was not wearing a seatbelt and is thrown forward, suffering facial and head injuries considerably worse than she would have sustained belted.

Her claim, fully valued, comes to R900 000.

On the collision itself she bears no responsibility at all. On the extent of her injuries she does, because the medical evidence establishes that a substantial part of her harm would have been avoided by a belt. The court apportions 25% against her.

She recovers R675 000.

Had she not claimed at all, on the assumption that the seatbelt disqualified her, she would have recovered nothing. That assumption is exactly what the 1956 Act was passed to stop, and it still costs claimants money every year.